Who do I sue for deposit? Letting agent or landlord?

[zxcvb]

Hi, everyone. I've had a look around this forum and found similar threads but my query is a little more specific.

I moved out of my flat at the end of June and was expecting my deposit back within 28 days. The contract stated that it'd be returned within 28 days "where possible". However, I still haven't recieved, nor did I recieve any reason for any delay or any reason why it wouldn't be returned.

I've spoken to the letting agents and they are claiming that the landlord hasn't returned the deposit back to them, so they can't give it back to me yet.

I'm getting really irritated by this and I'm wanting to go through the small claims court. However, I don't know who to take action against. The deposit was paid to the agency, the receipt is from them and they agreed to pay it back after the tennancy, but they're saying the landlord has the money. I have only met the landlord once and don't even know his name, let alone address or telephone number.

I want to send a letter formally warning them to pay up or I'll take them to court, but who do I approach?

I'm sure the contract is with the agency, but I actually threw it out by accident when clearing out my room (Still have the reciepts and other paperwork) so I can't check. I was also pretty naive in expecting the deposit back so just cleaned the flat and left. If they make something up about the state of it, it'll be their word against mine. I know now having read about deposits non-stop over the last few weeks what I should have done, but what should I do now?

Any advice?

[Cookie's Mum]

I have no direct knowledge of deposits etc., but have had some experience of small claims courts, the run up to taking action and getting refunds etc. Personally I would suggest the following:

Send a letter to the letting agents AND to your landlord, giving them notice of your intention to take your claim to the small claims (county) court. In this letter explain that you hold them responsible for the deposit and safe return of same. Also give them the opportunity to offer any explanation as to why the deposit has been retained. Give them a reasonable time, e.g. 14 days or so.

One or other of them will almost certainly reply. Normally the innocent party will give you all the rope you need to hang the other one! Maybe they will give you some sort of excuse which you will have to decide to accept or argue. If you argue, set a reasonable time limit within which to resolve your dispute and then perhaps seek arbitration.

If neither reply, just go ahead and put your claim in to the courts and make them joint defendants. You can always amend the claim (possibly for a small fee, which you can check out on the County Court's website) at a later stage and withdraw the claim against one of them, leaving the other as sole defendant. This will most probably now stimulate a response.

If they pay after you have lodged a claim, MAKE SURE THEY PAY COURT FEES. If they don't, press ahead for recovery of them because the judge will almost certainly find in your favour as you gave them every reasonable opportunity before lodging your claim.

If they don't pay you get to argue against damages, or whatever else they are claiming, in a court hearing before a judge who is 95% of the times a sensible enough member of the human race and can see through the delaying tactics used by some companies. (But 5% of the time you will get a wally) Again, the fact that you have given them opportunity to explain themselves and acted reasonably is all the judge is looking for in a decision to award court fees.

Hope this helps, and before the world and his dog jump down my throat and argue the odd omission or point of law, this is purely my experience, opinion and personal suggestion having been through the courts on half a dozen cases or more, as both claimant and defendant, during the course of my business dealings.

[barracad]

The action would need to be taken against the landlord, not the agent.

Also, did you sign an inventory when you moved into the flat? If not, then they will not have a leg to stand on if they try and make any deductions from the deposit.

[Cookie's Mum]

Oops - sorry! just re-read, you can't send to landlord!

Ok in that case just go for letting agent. Give them the 14 day letter of intention and follow as before.

[blacksheep1979]

If yo ucan go into the agency and ask to see a copy of the tennancy agreement as if you try claim from the wrong party it will simply be thrown out. Failing that you should probably be able to do a Data Protection Act Subject Access Request for it - although not 100% sure on that.

Who was the rent paid to?

[Nightmare4banks]

zxcvb in reply to your post:

As barracad mentioned,you sue the landlord.

Prior to doing this,I would suggest that you obtain written confirmation from the agent that the deposit is with the landlord.This way you avoid any confusion.

Follow the previous posts within this section of the forum and you will be okay.

However if you have any questions,just ask.

Keep us posted.

All the best!

[zxcvb]

Thanks for the replies everyone.

The agency refused to give me the landlords details over the phone but if need be I know someone who can get his details from land registry.

In answer to a couple of points:

I didn't sign or recieve an inventory and the rent was paid direct to the agency for the first 6 months, then the landlord requested it be paid direct to him for the last three months.

It's all very frustrating this as I rented the flat as a student and now I've graduated and am living 100 miles away from the flat / agency. I'm also annoyed that the deposit was given to the landlord. It would have made more sense to me if the agency had kept it and only given it to the landlord in the event of any damages.

I'll try sending them a letter. I had already sent them one asking for a reason for the delay etc. which was sent by recorded delivery - and according to the royal mail website it was never delivered.

[Nightmare4banks]

zxcvb,in reply to your post:

1.It is a criminal offence to not reveal the landlord's address to you - so putting this line in your letter that you are fully aware of this may put pepper on the agent's tail.

2.If all fails,you should be able to find out details of the landlord's address through the land registry.

I hope you find this information useful.

If you have any questions,just ask.

Keep us posted.

All the best!

[barracad]

Originally Posted by Nightmare4banks

It is a criminal offence to not reveal the landlord's address to you - so putting this line in your letter that you are fully aware of this may put pepper on the agent's tail.

I assume you are referring to Section 1 of Landlord & Tenancy Act 1985? If so, I believe this only applies to current tenants. This does not cover former tenants.

However, as you are planning on taking legal action against the landlord, I believe you can make a Data Protection Act request under Section 31 of the DPA which would force them into providing the address.

[Nightmare4banks]

barracad,I should have reworded my post my stating the the poster should have had the landlord's address at any point throughout the tenancy.Still in my view there is no excuse whatsoever for not giving the tenant the landlord's details regardless.I will have to check this out and when I have the answer post it here.

If I can recall the rent can also be withheld under these circumstances.However,it is a catch 22 situation because the landlord coud then evict on rent arrears.The law is a real ass!

barracad,I have just checked the Data Protection Act - the section that you have just quoted is not associated with classifications similar to letting agents etc

Personally,I think the easiest way to find out would be the land registry.

Anyway,that's my 2p's worth.

As has been pointed out by Barracad:

1) the claim is against the landlord (unless there is some other legitimate rason for including the agency).

2) there is unlikely to be an offence post termination/ expiry of the tenancy.

3) the address for service is the the landlords address shown on the tenancy agreement.

The DP Act is not going to bring you these details...the simplest way is to seek an order for disclosure through the court against the agency.

[barracad]

Originally Posted by Nightmare4banks

Still in my view there is no excuse whatsoever for not giving the tenant the landlord's details regardless.

I agree - my advice was a suggestion for what to do if the Letting Agent didn't play ball.

Originally Posted by Nightmare4banks

barracad,I have just checked the Data Protection Act - the section that you have just quoted is not associated with classifications similar to letting agents etc

Personally,I think the easiest way to find out would be the land registry.

I didn't have change to check the Data Protection Act fully that was just my initial thoughts as I thought there would be some grounds for disclosure. However, an alternative would be a DPA request asking for a copy of the tenancy agreement which would show the address.

Thinking about it some more, you're probably right - land registry would be easiest and it's cheaper too (£3 for land registry search, and £10 for Data Protection Act request).

[zxcvb]

Originally Posted by S J

3) the address for service is the the landlords address shown on the tenancy agreement.

Interesting. Is there any legal requirement for the address to be disclosed on the agreement?

While I no longer have it, I know for definite that it only had the landlords name on. On the front page there was details of the agency (including address) followed by a line "your landlord is Mr X XXXXXXX". Really wish I hadn't been so careless in throwing it out with a load of other junk though.

I have his name as I was instructed by the agency to pay the rent direct to his bank account and I have a rough idea of the area of the city he lives in based on what one of the neighbours told me at the time, so I don't think tracking him down should be too difficult.

Really appreciate your replies everyone.

The landlord has to provide a notice containing these details. That obligation can be discharged by including it on the tenancy agreement.

[rbrears]

Zxvcb

The Landlord has to put a notice for service of notices or documents in the tenancy agreement or give the information separately to his tenant. Until he does no rent is lawfully due under the tenancy agreement. This information is usually given in the tenancy agreement.

The agent is the agent (in a legal sense) of the Landlord. SImply write to the agent and say that unless they give you the Landlord's address for service (which should have been on the agreement) you will simply sue them for the deposit as the Landlord's agent and leave them to join the landlord into the proceedings.

Hopefully will be the easiest way to get his address. If you don't get it, sue the Agent and state in your claim to the court that you did not get a Notice regarding the Landlord's address for service in the tenancy agreement and that the agents of the landlord refused to divulge his details.

...and the agent (if they have a good representative) will apply to have the claim struck out and their costs awarded against you....

Not sure how you conclude that this is the easiest way.....